Ibong Udo Okoko & Anor V. The State (1964)

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COKER, J.S.C. 

The appellants were on the 26th June, 1964, at the High Court of the Calabar Judicial Division (Balonwu, J.) convicted of the murder on the 3rd December, 1962, of one John James Akpan at Ikot Ofon ikene, and they have appealed to this Court against their conviction.

The case against the appellants is that in the afternoon of the day of the murder, Akpan Ndok (4th Prosecution Witness) saw the deceased in the company of both appellants sitting outside the house of the second appellant. Later that day the fifth Prosecution Witness, Ebong Ntia, who was related to the second appellant by marriage and had come to visit him, knocked at his door which was then dosed. The second appellant would not open the door for him and indeed asked him to go away. The witness however heard the noise of intense struggling going on inside the house. He became suspicious and thought that the second appellant was beating up his wife and so he turned round to the back of the house to see whether he could gain entrance into the house from there. Soon thereafter he saw the corpse of the deceased being carried out of the room of the second appellant into his backyard by a party of four men, including both appellants. He then told the second appellant that he could see why he was refused entry into the house of the second appellant. Fearing that he might be waylaid if he proceeded homewards, he hid himself in a nearby bush. It was getting dusk and there was rain accompanied by thunder and lightning. Whilst he was In hiding in the bush as the lightning flickered he saw both appellants and two other persons holding the corpse of the deceased on his (deceased’s) bicycle which they pushed past him where he hid in the bush. Early on the following morning this witness got home. The second appellant came to him in his house and sternly warned him not to mention what he had seen in his (appellant’s) house on the previous evening to anyone and that if he did he would be responsible for anything that might happen to the appellant.

There was evidence that about two years before the murder of the deceased he had complained to the Police that he was waylaid and robbed of his bicycle by the first appellant who was thereafter prosecuted for that offence but was eventually discharged. That was admitted by the first appellant himself. There was also evidence that some time before the murder, a child of the second appellant died and the second appellant then swore that he would kill the deceased as the death of the child was a consequence of the adultery committed by the deceased with the mother of the child. The second appellant did not admit this evidence.

The doctor testified for the prosecution as follows:-

“I opened and examined the skull and found evidence of haemorrhage and brain damage on the back of the skull. This damage in my opinion was sufficient to cause death. The damage, in my opinion, might have been caused by trauma (injury) due to a fall or a blow on the back of the skull.”

When cross-examined the doctor testified that he saw no external signs of blows having been dealt on the other parts of the body of the deceased and also that a fall from a moving bicycle on to a very hard surface of the road could have caused the injury to the skull.

In his defence, the first appellant stated that he knew nothing about the death of the deceased and adopted his previous statement to the Police as part of his defence. In that statement he had maintained that he was at home throughout the day of the murder as his children were sick and that he did not know the second appellant at all much less go to his house. The second appellant on the other hand told a long story about how he went to the house of the deceased only after his death because all the villagers were summoned to be present at his funeral, and how he was arrested at the police station and charged with the murder of the deceased simply because he refused to agree to confirm that the first appellant had had some misunderstanding with the deceased. He also adopted his statement to the Police as part of his defence. In his statement he said that he was away from home on the day of the murder.

The learned trial Judge after reviewing the evidence and the plea of alibi set up by the appellants came to the conclusion that the appellants were the murderers of the deceased and convicted them accordingly.

Learned Counsel for the appellants in presenting their appeal canvassed two grounds as follows:-

(i) That considering the evidence of the doctor who performed the post-mortem examination on the body of the deceased the prosecution had failed to establish that the deceased was killed by the appellants in the way described in the evidence of the prosecution witnesses and that it was not for the appellants to explain how the deceased came by his death; and

(ii) That the alibi of the second appellant was not properly investigated by the learned trial Judge.

With regard to the second ground: the second appellant made a statement to the Police under caution after he was charged with the murder of the deceased. In that statement he said that he visited his friend “Akpan Ben Akpan Mbuk of Ikot Nko-Asutan Ekpe” and stayed with him from Saturday 1st December, 1962, to Monday morning, and then went to the mother of his houseboy; he did not know her name; with her he went back to the house of Akpan Ben, where he slept on Monday night until the morning of Tuesday, the 4th, when he left for his own house. Although the prosecution did not call the woman alluded to by the appellant in his statement, they called his friend Akpan Ben who testified that although the second appellant visited him and stayed as from a Saturday early in the month of December, 1962, he left on the morning of the following Monday and did not come back. It was clearly open to the appellant to call this woman as his witness if he so desired. Quite apart from this, however, both the father of the second appellant and his brother-in-law who were prosecution witnesses Nos. 8 and 4 respectively, gave evidence to the effect that they saw the second appellant in his house in the afternoon on the day of the murder i.e., the 3rd December, 1962. The learned trial Judge considered the whole evidence adduced by both the prosecution and the defence and concluded that the second appellant’s alibi was bogus and indeed observed as follows:-

“It is my finding that the second accused set up the alibi because he did not want to admit the events which took place in his house on the 3rd December and which were vividly described by Ebong Ntia.”